Published by Maxwell S. Kennerly, Esquire of The Beasley Firm, LLC

Proving Bacterial Infection Injuries Through Circumstantial Evidence

SIOUX CITY — A Sioux City bank has filed a personal-injury lawsuit on behalf of a Sioux City girl against the maker of a powdered infant formula, claiming the girl got seriously ill from drinking the reconstituted formula days after she was born in 2008.

According to court documents, Security National Bank alleges the girl, Jeanine Kunkel, now nearly 3 years old, contracted neonatal Enterobacter sakazakii meningitis from the Similac formula made by Abbott Laboratories and suffered permanent brain damage. The bank, as the child’s conservator, seeks monetary damages for her care, suffering and fear of future disease.

Her parents say Jeanine changed drastically soon after drinking the powdered formula, which came in a complimentary gift bag when she was discharged from St. Luke’s Regional Medical Center.

In many ways, it seems like an open and shut case. The child was promptly diagnosed with E. sakazakii meningitis. The Centers for Disease Control and Prevention has found E. sakazakii infections through tainted powered infant formula before (as have the Food and Drug Administration and World Health Organization) and apparently doesn’t know of any other way in which infants become infected.

Moreover, her twin wasn’t infected, despite virtually identical conditions except for the formula. He’s fine. She “doesn’t walk, crawl or roll over. She eats through a tube inserted into her stomach, her father said, because her brain isn’t able to command her throat to swallow. A shunt keeps harmful fluid from building up in her brain.” Twins don’t mirror each other’s health care course, but his good health does help rule out, to some extent, the possibility of other causes.

But there’s a hitch in the case:

Surber and Troy Kunkel, Jeanine’s father, admit tests conducted on the can of powdered Similac didn’t show evidence of Enterobacter sakazakii bacteria, but Sioux City attorney Tim Bottaro said they’re confident that’s where the harmful bacteria came from.

FDA labs tested for but did not find the bacterium in the family’s kitchen, the lawsuit says.

The tort of negligence (which underlies most product liability cases) has four elements, duty, breach, causation, and damages. To recover, a plaintiff must prove them all beyond a preponderance of doubt. Even in strict liability (which underlies the rest of tainted product claims) the plaintiff must demonstrate that the defective product in question caused the harm alleged.

So how does the family prove that the infection which caused her brain damage was caused by the formula when the formula sample itself did not test positive for the bacteria?

Simple: by relying on that circumstantial evidence described above.

There’s a common misconception that, to win a lawsuit, plaintiffs have to have direct evidence to prove that the defendant’s negligence caused their injuries. But that’s not the law; consider this railroad case from the Sixth Circuit:

We further note that even had the district court not abused its discretion in granting Norfolk’s motion in limine, it does not automatically follow that summary judgment in favor of Norfolk was proper. After disallowing all the causation testimony, the district court held that the law requires expert evidence to establish causation, and without it, Plaintiff’s negligence claim must fail as a matter of law. … Plaintiff never asserts that he need not make any showing of causation to survive summary judgment; rather, he argues that he has adduced sufficient evidence of causation, even without expert testimony on the specific issue, such that a jury reasonably could infer causation. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 41, at 270 (5th ed.1984) (“Circumstantial evidence, expert testimony, or common knowledge may provide a basis from which the causal sequence may be inferred.”). …

[In fact,] nothing would preclude Plaintiff from testifying as to his work and non-work-related activities. Such testimony, even without expert causation testimony, certainly would be adequate to provide a jury with the “special expertise… necessary to draw a causal inference.” See Claar v. Burlington N. R.R., 29 F.3d 499, 504 (9th Cir.1994) (holding that expert testimony is necessary to establish causation in situations where “special expertise was necessary to draw causal inference”).

(Emphasis added.)

Every day, millions of dollars are awarded (or denied) and people go to jail on the basis of circumstantial evidence. Even outside of cases with complicated medical issues at play, it’s hard to find direct evidence for all four elements of negligence. Defendants in civil lawsuits tend not to confess their liability; they tend to deny everything, including the time of day. The problem with infection lawsuits is that they combine this unwillingness on the part of the defendant to admit anything, even basic medical facts, with the notorious problem of tying a particular bacteria or virus at a particular location to a particular patient, which is virtually impossible to do. Personal injury lawyers tend to have trouble proving infection cases and shy about taking them.

But this case is different; the circumstantial evidence is overwhelming. There is, almost literally, no way for newborns to contract that specific illness except through the consumption of tainted powdered formula, and the timing of her symptoms perfectly correlated with the consumption of the powder. Although there are many circumstances, for example, in which a neonate can have an intraventricular hemorrhage, those all relate to injuries sustained at birth (whether due to prematurity, hypoxia, or placental insufficiency), and are discovered long before the baby is discharged from the hospital.

Going back to the law quoted above, infection by enterobacter sakazakii bacteria is likely one of those situations in which “special expertise was necessary to draw causal inference,” but all that requires is expert testimony from a qualified physician or infectious disease specialist. It’s quite possible that the treating physicians at St. Luke’s would offer that opinion themselves; not to be too cynical, but it’s highly unlikely they’ll say the bacteria came from their hospital. The bank acting as trustee for Jeanine has said it plans not to sue the hospital. Smart move.

All of which is to say, as counterintuitive as it may sound to some, the absence of direct proof is not nearly as serious an issue as everything else at issue here, like the timing and rarity of the disease. Trial law isn’t about the trees, it’s about the forest. Unless Abbott Laboratories can show that the test is flawless (doubtful), and that she was somehow otherwise exposed to the disease (also doubtful), it seems likely they will pay for the rest of her care, as they should.

I’m a trial lawyer for injured people and businesses at The Beasley Firm, founded in 1958. The Firm’s legacy speaks for itself; the law school at Temple University was re-named the Beasley School of Law in honor of the Firm’s founder, James E. Beasley. We’re listed in [...]